State ex rel. Beacon Journal Pub. Co. v. University of Akron

Citation64 Ohio St.2d 392,18 O.O.3d 534,415 N.E.2d 310
Decision Date30 December 1980
Docket NumberNo. 80-1144,80-1144
Parties, 18 O.O.3d 534, 6 Media L. Rep. 2390 The STATE, ex rel. BEACON JOURNAL PUBLISHING CO., Appellee, v. UNIVERSITY OF AKRON, Appellant.
CourtOhio Supreme Court

Syllabus by the Court

Law enforcement records compiled before the amendment of R.C. 149.43 are available to the public provided they are public records as defined by R.C. 149.43 and are not exempted from disclosure by its provisions.

This cause originated as a mandamus action in the Court of Appeals in which relator-appellee, the Beacon Journal Publishing Company, is seeking to compel respondent-appellant, the University of Akron, to provide it access to certain records compiled by the University's Security Department. The records sought are two reports prepared by the university police concerning a student in the university. The first report, dated September 23, 1978, relates to the alleged rape of the student; the second, dated September 28, 1978, recounts the student's death and surrounding circumstances.

Shortly after these events Beacon Journal requested permission to inspect the police reports. The university refused to furnish the reports. In answer to this refusal the Beacon Journal brought a mandamus action similar to the instant cause in November 1978. Apparently in response to this court's decision in Wooster Republican Printing Co. v. Wooster (1978), 56 Ohio St.2d 126, 383 N.E.2d 124, that action was voluntarily dismissed in February 1979.

Beacon Journal subsequently renewed its request to view the reports, but access was continuously denied. In the meantime, the General Assembly enacted Am.Sub.S.B.No. 62, amending R.C. 149.43, 1347.04, and 1347.08, which in part govern the availability of public records. Beacon Journal brought the instant mandamus action in the Court of Appeals on January 14, 1980, while Am.Sub.S.B.No. 62 became effective on January 18, 1980. Beacon Journal filed a supplemental complaint on March 27, 1980, alleging a continuing refusal by the university to permit inspection of the reports. 1 The Court of Appeals granted the writ sought by Beacon Journal, ordering the university to permit the inspection and copying of the two reports.

The cause is now before this court upon an appeal as of right.

Roetzal & Andress and Norman S. Carr, Akron, for appellee.

Parms, Purnell & Stubbs and Edwin L. Parms, Akron, for appellant.

PAUL W. BROWN, Justice.

Appellant raises three propositions of law in this appeal. The university first contends that: "Police and other law enforcement investigatory records compiled before January 18, 1980, the effective date of the amendment of R.C. 149.43, are not 'public records' within the meaning of that section." We disagree.

In Wooster Republican Printing Co. v. Wooster, supra 56 Ohio St.2d 126, 383 N.E.2d 124, paragraph four of the syllabus, this court held that: "Police and other law enforcement investigatory records are not subject to the compulsory disclosure provisions of R.C. 149.43." We reached this result construing former R.C. 149.43 2 together with R.C. 1347.08(F) 3 as it then stood. Both statutory provisions have undergone substantial legislative amendment (under Am.Sub.S.B.No. 162) so that they now clearly permit disclosure of law enforcement investigatory records under certain circumstances. R.C. 1347.08(F) 4 has been altered to allow access to the public records governed by R.C. 149.43. R.C. 149.43 currently provides, in pertinent part:

"(A) As used in this section:

"(1) 'Public record' means any record that is required to be kept by any governmental unit, including, but not limited to, state, county, city, village, township, and school district units, except medical records, records pertaining to adoption, probation and parole proceedings, trial preparation records, confidential law enforcement investigatory records, and records the release of which is prohibited by state or federal law.

"(2) 'Confidential law enforcement investigatory record' means any record that pertains to a law enforcement matter of a criminal, quasi-criminal, civil, or administrative nature, but only to the extent that the release of the record would create a high probability of disclosure of any of the following:

"(a) The identity of a suspect who has not been charged with the offense to which the record pertains, or of an information source or witness to whom confidentiality has been reasonably promised;

"(b) Information provided by an information source or witness to whom confidentiality has been reasonably promised, which information would reasonably tend to disclose his identity;

"(c) Specific confidential investigatory techniques or procedures or specific investigatory work product;

"(d) Information that would endanger the life or physical safety of law enforcement personnel, a crime victim, a witness, or a confidential information source.

" * * *

"(4) 'Trial preparation record' means any record that contains information that is specifically compiled in reasonable anticipation of, or in defense of, a civil or criminal action or proceeding, including the independent thought processes and personal trial preparation of an attorney.

"(B) All public records shall be promptly prepared and made available to any member of the general public at all reasonable times for inspection. Upon request, a person responsible for public records shall make copies available at cost, within a reasonable period of time. In order to facilitate broader access to public records, governmental units shall maintain public records in such a manner that they can be made available for inspection in accordance with this division.

"(C) Chapter 1347 of the Revised Code does not limit the provisions of this section."

The university does not claim that police records made after the effective date of these amendments may not be inspected in accordance with the statutes as they now stand, but instead contends that law enforcement records made prior to the amendments may not be viewed under these newly- enacted provisions. Reliance is placed upon R.C. 1.58, 5 which governs the application of legislative amendments. It is claimed that application of the present provisions of R.C. 149.43 to records made before its amendment would constitute a retroactive operation of the amendment in violation of R.C. 1.58. The university's reliance upon R.C. 1.58, however, is misplaced.

In examining R.C. 149.43, we initially note that it speaks in terms of "all public records" and makes no distinction for those records compiled prior to its effective date. More importantly, however, is the simple fact that Beacon Journal is not seeking to apply the statute in a retrospective manner, but is instead seeking present access to the records. Concededly, the creation of the records took place prior to the legislative amendment at issue, but this is not the conduct regulated by the statute. R.C. 149.43 deals with the availability of public records, not with the recordation function of governmental units. The date the records were made is not relevant under the statute. Since the statute merely deals with record disclosure, not record keeping, only a prospective duty is imposed upon those maintaining public records.

Even assuming that the statute as amended in some incidental manner operates retroactively, its application would not violate R.C. 1.58 as this court has construed that provision and its predecessor, R.C. 1.20. Cleveland Trust Co. v. Eaton (1970), 21 Ohio St.2d 129, 140, 256 N.E.2d 198, Cook v. Matvejs (1978), 56 Ohio St.2d 234, 383 N.E.2d 601. Any interests in confidentiality that may have been affected by reliance upon prior law in compiling these reports by the university are adequately safeguarded by R.C. 149.43 itself. These interests are dealt with extensively in R.C. 149.43(A)(2) and (4) which define "confidential law enforcement investigatory records" and "trial preparation records" which are exempted from public availability.

Accordingly, we conclude that law enforcement records compiled before the amendment of R.C. 149.43 are available to the public provided they are public records as defined by R.C. 149.43 and are not exempted from disclosure by its provisions.

The university in its final two propositions of law contends that the university police records sought here are not public records within the definition of R.C. 149.43, claiming that the records fall within either the "specific investigatory work product" exemption contained within R.C. 149.43(A)(2)(c) or the exemption in R.C. 149.43(A)(4) for "trial preparation records." An in camera review of these documents leads us to the conclusion that neither of these exemptions is applicable.

The materials sought by Beacon Journal can only be characterized as routine factual reports. 6 The university's police were simply fulfilling the duty imposed upon all law enforcement agencies to generate ongoing offense reports, chronicling factual events reported to them. 7

This type of report does not fall within the statutory exemptions. R.C. 149.43 indicates that the exemptions within its provisions should be construed strictly against the custodian of the public records sought. R.C. 149.43(A) (2), defining "confidential law enforcement investigatory record," restricts release only where there is a "high probability of disclosure" of one of the four enumerated exemptions. Further, the exception under R.C. 149.43(A)(2)(c) that the university relies upon contains the qualifying word "specific," exempting only "specific investigatory work product." Further, the other exception claimed here, that of trial...

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